Complainant

Respondent

Parties

Martin Casey and Natalie  Quilligan

Texas Steakout Limited Texas Steakout

Representatives

John McNamara John McNamara Solicitors

 Yuliya Lennon solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00055768-001

28/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00056246-001

20/04/2023

The Complainants, members of the Traveller Community, alleged that they were discriminated against when the Respondent, who operates a restaurant refused them service when they and their family arrived at the restaurant at approximately 5pm on Christmas Eve 24/12/2022 despite the fact that they had made the booking some weeks previously and confirmed same with the restaurant by phone on 23/12/2022.

The Complainants allege that this was solely due to their being members of the Traveller community. The Respondents deny the claim and state the Kitchen was closed as it always closed early on Christmas Eve to allow staff to go home early, and staff were cleaning up and ready to go home.

The Complainants are members of the Traveller community.

The Complainants booked a table for their family of 2 adults and 3 children for 5pm on Christmas Eve.

When the complainant and their family arrived at the restaurant, they were told that there was no table for them, and they were turned away.

The Respondents submit that the complainant and their family arrived at 5 pm on Christmas Eve and the Kitchen was closed as it always closed early on Christmas Eve to allow staff to go home early, and staff were cleaning up and ready to go home,

The respondent submit that they would not have accepted bookings for 5 pm on Christmas Eve as the restaurant closes early on Christmas Eve but that a new booking system erroneously allowed bookings to be made for up to 5pm,

The respondent submit that they noticed the error with the booking system a number of days prior to Christmas Eve and had phoned around cancelling customers who had obtained the late bookings,

The respondent submits that eh complainants would also have received a phone call cancelling their booking in advance of Christmas Eve.

It is submitted that the complainants are frequent customers of the respondent and have dined there on many occasions prior to this booking and were never refused service.

The Complainants allege that they were discriminated against by the Respondent on the grounds of their membership of the Traveller Community.

Discrimination is defined in Section 3 of the Equal Status Act 2000 as:-

“(1) For the purposes of this Act discrimination shall be taken to occur -

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which –

(i) exists,(ii) existed but no longer exists,(iii) may exist in the future, or(iv) is imputed to the person concerned,

(b) where a person who is associated with another person -

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Section 3(2) of the 2000 Act continues:

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ....

(i) that one is a member of the Traveller Community, and the other is not (the “Traveller Community ground”.

Section 5 of the Equal Status Act 2000 prohibits discrimination in the disposal of goods or services:

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In making my decision, I have considered all of the submissions and evidence, written and oral, made to me by the parties to the case.

The matter for decision is whether the Complainants, as members of the Traveller Community, were discriminated against by the Respondent.

There was no dispute that the Complainants are members  of the Traveller Community. There was also no dispute as to the fact that the restaurant offers a service to the general public. There was no dispute that the Complainants were denied the opportunity to avail of the service booked by them in advance.

The complainants advised the hearing that they booked a table for themselves and their three children for 5pm on Christmas Eve.   The complainants advised the hearing that they arrived at the restaurant about 4.50pm with their three children and were told that there was no table for them and were told that the kitchen was closed.     The complainants stated that there were still people in the restaurant eating when they arrived, and that people were also walking past them and sitting at tables.

 The respondent advised the hearing that the complainants and their family arrived at 5 pm on Christmas Eve and the Kitchen was closed as it always closed early on Christmas Eve to allow staff to go home early, and staff were cleaning up and ready to go home.

The respondent submit that they did not accept bookings after 3 pm on Christmas Eve but that a new booking system utilised by new staff post Covid erroneously allowed bookings to be made for up to 5pm on that occasion.

The respondents submit that they noticed the error with the bookings a number of days prior to Christmas Eve and had phoned around cancelling customers who had obtained the bookings for time slots.

The respondents advised the hearing that the complainants should have and most likely did receive a phone call to cancel their booking, but they did acknowledge that it was a possibility that the staff member tasked with phoning and cancelling these bookings may not have actually got through to or got to speak with every individual affected.  The respondent added that it was a busy time of year, and they had a lot of new and inexperienced staff working for them at the time.   

The respondent in response to the claim that people had walked past the complainants and sat at tables stated that there may have been one or two customers who had gone outside for a cigarette and were returning to their tables.  The respondent stated that they had finished serving food when the complainants arrived but that there was a possibility that final teas and coffees were being served to one or two tables but that the kitchen was shut down and the chefs gone home.

I am satisfied that it is well known an accepted practice that businesses close early on Christmas Eve in order to allow staff to go home early.  

I also note that the respondent advised the hearing that both complainants were frequent customers in its establishment prior to this occasion and had never been refused service before.  The complainants at the hearing acknowledged that this was the case and that they had dined there on previous occasions.   I note the respondent position that an error in the booking system allowed bookings to be made for later time slots on Christmas Eve and that they attempted to rectify this error by phoning around the affected customers to cancel those bookings.   The respondents submit that the complainant should have and most likely did receive such a phone call but did acknowledge that it was a possibility that the staff member tasked with phoning and cancelling these bookings may not have actually got through to or got to speak with every individual affected.  The respondent added that it was a busy time of year, and they had a lot of new and temporary staff working for them at the time.    The respondents at the hearing addressed the complainant by name and I am satisfied that the complainant had dined in the premises on previous occasions and was not refused service on those occasions.

The respondent’s advised the hearing that they had tried to explain to the complainants what had happened vis a vis the late booking being accepted in error and the fact that they were closing early for Christmas Eve, but they stated that Mr. Casey refused to listen and became aggressive accusing them of discrimination in spite of the fact that the complainants had dined there on previous occasions.

The respondents were very apologetic towards the complainants for the mix up and for any upset caused and stated that the complainants were welcome on their premises as they always had been.

Having regard to the totality of the evidence adduced I am satisfied that the complainants were not discriminated against by the respondent on grounds of their membership of the Traveller Community.

I find that the Complainants were not discriminated against by the respondent, in respect of this matter, on grounds of membership of the Traveller Community.